Opinion No. 05-01

February 3, 2005

Topic: Duty of judge to disqualify himself or herself from cases involving a lawyer who represented the judge, prior to the judge’s appointment to the bench, in a matter before the Attorney Registration and Disciplinary Commission.

Digest: A judge is not disqualified from cases in which a lawyer appears where the lawyer was retained by the judge six years before the judge’s appointment to the bench to assist the judge in responding to a letter from the Attorney Registration and Disciplinary Commission.

References: Illinois Supreme Court Rule 63C(1); Illinois Judicial Ethics Committee Opinion Nos. 98-17, 95-2 and 94-18; Texaco v. Chandler, 354 F.2d 655 (10th Cir. 1965); Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003); Utah Judicial Ethics Advisory Committee Informal Opinion No. 00-4; Shaman, Lubet and Alfini, Judicial Conduct and

Ethics, sec. 4.18, p.146 (3rd ed. 2000).

FACTS

Six years before being appointed to the bench, a judge retained counsel to assist in responding to a letter from the Attorney Registration and Disciplinary Commission (ARDC) requesting information concerning allegations made by a former client of the judge. The lawyer assisted the judge in drafting a response and was paid for services rendered. No action was taken by the ARDC and the judge had no further contact with the lawyer regarding the ARDC inquiry. The lawyer has not represented the judge, or family member of the judge, in any other matter.

QUESTIONS

Is the judge disqualified from hearing cases in which the judge’s former lawyer appears?

Is the judge required to disclose the previous attorney-client relationship?

QUESTION 1

The Committee has previously determined that where a lawyer currently represents a judge in a personal legal matter, the judge is disqualified under Illinois Supreme Court Rule 63C(1) from any other matter in which the lawyer appears because the judge’s impartiality might reasonably be questioned. Illinois Judicial Ethics Committee Opinion No. 95-2. Courts addressing the issue have likewise required disqualification during the time the attorney is representing the judge. See Texaco v. Chandler, 354 F.2d 655 (10th Cir. 1965) (judge disqualified in cases handled by lawyer who simultaneously represented the judge in a defamation suit) and Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003) (appellate judge disqualified because attorney appearing in a case before the appellate court also represented a trust of which the appellate judge was a trustee).

Clearly, if the lawyer’s representation of the judge has concluded, concerns about the partiality or the appearance of partiality are not so acute. Shaman, Lubet, Alfini, Judicial Conduct and Ethics, sec. 4.18, p.146 (3rd ed. 2000). But, even after the attorney-client relationship has ended, a judge must disqualify for as long as the judge’s impartiality might reasonably be questioned. Several judicial ethics advisory committees have set a definite time period following the termination of the lawyer’s representation of a judge during which disqualification is required. For example, the Utah Judicial Ethics Advisory Committee has determined that a judge must disqualify from an attorney’s cases for a period of six months following the attorney’s representation of the judge in a disciplinary proceeding before the state’s judicial conduct commission. Utah Judicial Ethics Advisory Committee Informal Opinion No. 00-4. Although bright-line rules have the benefit of ease of application, this Committee continues to be of the opinion that because the "appearance of impartiality" is a fact-dependant standard, each case must be evaluated on the basis of its particular circumstances. Some of the factors to consider in deciding whether a judge’s impartiality might reasonably be questioned after termination of the attorney-client relationship include, (1) the number of legal matters in which the lawyer represented the judge or a member of the judge’s family, (2) the complexity of the legal matters, (3) the length of time that the legal matter or matters were pending, (4) the degree to which the legal matters were contested or adversarial in nature, and (5) the length of time that has elapsed since the legal representation concluded. See Illinois Judicial Ethics Committee Opinion Nos. 95-2 and 98-17. Weighing these factors, the Committee has opined that a lawyer could appear before a judge almost immediately after representing a judge in a simple, uncontested matter such as a speeding ticket, but that a longer disqualification period might be appropriate in complex or lengthy litigation like a contested divorce. Illinois Judicial Ethics Committee Opinion 95-2. See also Illinois Judicial Ethics Committee Opinion 98-17 (disqualification not required where lawyer represented judge in two routine real estate closings four and nine years ago).

The circumstances attendant to the present inquiry do not support a conclusion that the judge’s impartiality might reasonably be questioned in proceedings before the judge in which the judge’s former lawyer appears. At least six years have passed since the lawyer assisted the judge in responding to the ARDC inquiry. The matter was short-lived and does not appear to have been legally or factually complex or to have required extensive dealings between the judge and lawyer. No adversarial proceedings were instituted. As a result, disqualification is not required.

QUESTION 2

Having found no basis for disqualification, the question remains whether the judge must disclose the former attorney-client relationship. The position of the Committee on disclosure has been consistently set forth as follows:

Although the Illinois Code does not contain a recommendation, let alone a requirement, that judges disclose information regarding disqualification, the Committee nevertheless believes that such disclosure is the better practice if under the circumstances of the particular case, the information is relevant to a reasonable argument that disqualification is required. Illinois Judicial Ethics Opinion No. 94-18.

Of course, a judge is free to disclose under a more liberal standard if, under the circumstances of a particular case, the judge sees fit to do so.

Disclosure under the "better practice" standard suggested by the Committee in Opinion No. 94-18 is not necessary here because the facts surrounding the attorney’s representation of the judge are not relevant to a reasonable argument that disqualification is required.